The taught modules offered on the LLM programme vary from year to year. Please check the full list of taught modules list for details of modules running in specific academic years. We make every effort to ensure that every module will be offered, but modules are subject to change and cancellation. You are therefore advised to check this site regularly for further updates throughout the year preceding entry to the LLM programme.
INTERNATIONAL AND COMPARATIVE INSOLVENCY LAW (LAWSG023) Credit value: 30 credits (12 ECTS)
Other Teachers: Mr Ron Harmer - Visiting Professor
Dr Paul Omar - Visiting Lecturer
Ms Janie Anderson Castle - Visiting Lecturer
Teaching method: 20 x two-hour seminars
Intercollegiate teaching: None
Who may enrol: UCL LLM students, Semester in London (SIL) students
Barred module combinations: None
Normal method of assessment: 100% three-hour unseen written examination
The Introduction, and Part I of the course (11 seminars) deals comparatively with the diverse approaches to insolvency law in a number of selected countries representing a variety of different legal and socio-political traditions. Attention will focus on the differences, and resulting problems of compatibility, between national insolvency laws, and on the special problems of countries that have emerged from command to market economies. The emphasis will be mainly on corporate enterprise insolvency, paying special regard to the differing approaches to the subject of business rescue, as an alternative to liquidation, and upon the use of insolvency procedures as an instrument of social and commercial policy. Examples drawn from different regions of the world are selected for in-depth study, to provide an understanding of the variations between national laws and policies. These will include North America (the USA), South East Asia/Pacific Region (including the People’s Republic of China), and Europe (represented by UK and France). In the comparative studies, an element of flexibility will be maintained to enable us to take account of contemporary issues and to benefit from the availability of particular experts to enhance the programme.
Part II of the course (11 seminars) deals with international aspects of insolvency law (in particular where assets, business interests and/or creditors of an insolvent enterprise are located in two or more jurisdictions). A major focus of Part II is an in-depth study of the EU Regulation on Insolvency Proceedings, and of the impact it is making on insolvency law and practice. This Part also involves a study of the separate, but complementary, effects that follow from enactment of the UNCITRAL Model Law on Cross-Border Insolvency. As a foundation for exploration of these important international texts, the approaches previously developed under national law (chiefly, but not exclusively, under English law) will be considered, and their merits and demerits assessed. As in part I, although the main emphasis is upon the insolvency of companies, some aspects of individual insolvency are also examined. To place the latest developments in context, we survey other past and current initiatives intended to enhance the regulation of international insolvency. These include several conventions previously concluded on a regional basis in Europe and elsewhere, and more recent initiatives such as the American Law Institute’s Transnational Insolvency Project, and programmes conducted by the IMF, the World Bank, the Asian Development Bank, and most recently by UNCITRAL.
Seminar 1: Aims and content of the course (Parts I and II). An overview of the main themes and theories.
Seminar 2: Principles and objectives of insolvency law; differences in national approaches.
Seminar 3: Introduction to systems of insolvency law. Emphasis on business rescue. International standards. UNCITRAL Legislative Guidelines.
Part I – Comparative Insolvency [Note: actual order of treatment of topics may be subject to variation]
Seminar 4: English law perspectives on business rescue: administration; voluntary arrangements; administrative receivership.
Seminar 5: United States bankruptcy law: (I): general introduction.
Seminar 6: United States bankruptcy law (II): business rescue under Chapter 11.
Seminar 7: Continental European perspectives. Selected example: France. The modern French approaches to business rescue.
Seminar 8: Asian-Pacific/other European countries (I): Australian business rescue procedures.
Seminar 9: Asian-Pacific/other European countries (II): (tba)
Seminar 10: Asian-Pacific/other European countries (III): (tba)
Seminar 11: Reflection and review: in-class debate, and conclusion of Part I
************************ Term 2
Part II – International Insolvency
Seminar 12: Principles of jurisdiction: winding up of foreign companies by English courts.
Seminar 13: Recognition of foreign insolvency proceedings under English law. Judicial control and cooperation. Anti-suit injunctions.
Seminar 14: International judicial cooperation at common law and by statute (s.426, Insolvency Act 1986). Exploring the limits of judicial discretion.
Seminar 15: The EU Regulation on Insolvency Proceedings (I): Main features, objectives and legal characteristics. Interpretation by the ECJ and by national courts.
Seminar 16: The EU Regulation on Insolvency Proceedings (II): scope of application; main and secondary proceedings; recognition and enforcement.
Seminar 17: The EU Regulation on Insolvency Proceedings (III): problems of interpretation – review of leading cases. Choice of law provisions. Revision of the EIR (2012)
Seminar 18: The UNCITRAL Model Law on Cross-Border Insolvency (I): main features, aims and objectives.
Seminar 19: The UNCITRAL Model Law (II): aspects of enactment by different states.
Seminar 20: The UNCITRAL Model Law (III): enactment in UK – the Cross-Border Insolvency Regulations 2006. Further international initiatives aimed at improving the conduct of international cases: UNCITRAL; World Bank; ADB; ALI “Global Principles” project.
Seminar 21: The UNCITRAL Model Law (IV): enactment by the USA – Chapter 15.
Seminar 22: Conclusions and reflections. Retrospective review of the course.
Because of the wide range of matters covered within the course, there is no single textbook that is recommended for purchase. The following list contains some of the works likely to prove of value throughout the course. More specialised reading recommendations will be issued during the course of the year.
I.F. Fletcher, Insolvency in Private International Law: National and International Approaches, 2nd Edn, (2005) with Supplement (2007).
P. St.J. Smart, Cross-Border Insolvency, 2nd Edn. (1998).
Philip R. Wood, Principles of International Insolvency, 2nd Edn. (2007).
Bob Wessels, International Insolvency Law (2006).
Roy Goode, Principles of Corporate Insolvency Law, 4th Edn. (2011).
I.F. Fletcher, The Law of Insolvency, 4th Edn. (2009), esp. Part III.
G. Moss, S. Isaacs and I.F. Fletcher, The EC Regulation on Insolvency Proceedings, 2nd Edn. (2009).
M. Virgos and F. Garcimartin, The European Insolvency Regulation: Law and Practice, (2004).
J. Marshall (General Editor), European Cross-Border Insolvency (2004, with supplements).
Bob Wessels (Ed.), Cross-Border Insolvency Law, International Instruments and Commentary (2007)
Look Chan Ho (Ed.), Cross-Border Insolvency. A Commentary on the UNCITRAL Model Law, 2nd Edn. (2009)
L. Collins (General Editor), Dicey, Morris and Collins on the Conflict of Laws (14th Edn. 2006, with supplements), esp. Chapters 30, 31.
J.S. Ziegel (Ed.), Current Developments in International and Comparative Corporate Insolvency Law (1994).
I.F. Fletcher, Insolvency in Private International Law: National and International Approaches, 2nd Edn, (2005) – Chapter 1.
Roy Goode, Principles of Corporate Insolvency Law, 4th Edn. (2011) – Chapter 16.
I.F. Fletcher, The Law of Insolvency, 4th Edn. (2009) – Chapter 28.
Two pieces of written work, based on past examination questions, are set over the Christmas and Easter vacations respectively. These are optional and do not form part of the course assessment but they enable those completing them to receive comments and advice based on their work.
Students should possess some knowledge of insolvency law (not necessarily that of the UK) as a foundation for studying this course. Alternatively, students should consider registering for (or at least attending) the classes in Corporate Insolvency (LAWSGO75; LAWSG90; LAWSG091)
The application process for the 2014-15 academic session, for entry in September 2014, is now open.
Please refer to the How to apply section for information on the application process.